Thursday, August 5, 2010

The Prop. 8 Decision

Yesterday, as you’ve undoubtedly heard, a California District Court held that California Proposition 8, the 2008 referendum amending the California constitution to limit marriage to heterosexual couplings is unconstitutional. Liberal court watchers are predictably ecstatic (see, e.g., Dahlia Lithwick’s reaction). As much as I like the result as public policy, I’m neither as confident as Lithwick that the decision is legally robust, nor as convinced as she seems to be that it really amounts to a substantial victory for gays and lesbians.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

This is a more radical attack on Prop. 8 than courts typically mount against political decisions on equal protection grounds. Usually that’s a matter of a court’s holding that the decision’s advocates haven’t overcome the presumption of unconstitutionality raised by its differential treatment of people who’ve historically been discriminated against by showing that the decision is narrowly tailored to serve a “compelling state interest.” Judge Walker found not only that Proposition 8 serves no compelling state interest, but that it’s not even rationally related to any legitimate state interest.

That’s not a legally unprecedented methodology (seeRomer v. Evans), but it’s still a controversial one because the idea of a law’s being “rationally related to a legitimate state interest” wasn’t originally designed to do this much normative work (indeed, it was intended to raise a presumption of constitutionality). To my knowledge, no judge has leaned as hard on the "rational relation" doctrine as Judge Walker does in this opinion. The 2003 California Domestic Partners Rights and Responsibilities Act established the legal presumption, subject only to some minor enumerated exceptions, that legally recognized domestic partnerships confer the same substantive rights on same-sex couples that civil marriages confer on opposite-sex couples. Proposition 8 was carefully worded neither to deprive same-sex domestic partners of any tangible benefit enjoyed, nor relieve them any tangible burden borne, by heterosexual spouses under current law.

That makes Proposition 8’s net effect almost entirely a matter of retaining nomenclature in official government documents that accords with customary usage and expresses the (unfortunate) sense of the community, confirmed by two state-wide referenda, that same-sex and opposite-sex relationships aren’t morally equivalent. As far as I know, there’s no legal precedent for deciding that officially calling legally identical bundles of rights different things implies "inequality before the law.” An appellate court might therefore find that it’s a stretch to agree with Judge Walker that Prop. 8 “does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.” And conservative judges are sure to insist that giving public expression to the moral sense of the community is a legitimate state interest anyway.

Suppose, however, that the decision is upheld by the Supreme Court. Is it really as substantial a victory for gays and lesbians as most liberals assume it is? To answer that question you have to ask yourself why gays and lesbians care so much about same-sex marriage in the first place. I won’t presume to speak for them, but I can only imagine that it’s mostly a matter of their wanting to enjoy the same substantive rights as opposite-sex spouses.

Yet the zeal with which California gays and lesbians opposed Proposition 8 when they already enjoyed the rights conferred by the state domestic partnership law shows that they want something more. But what, exactly? It has been a long time since many gays and lesbians needed validation from a court to enable them to respect themselves and appreciate the value of their same-sex partnerships. They don’t need to be told, I assume, that they’re entitled to respect.

Presumably what they want above all is actually being respected. Same-sex marriage licenses matter in that connection principally because they’re tokens of the community’s recognition of, and respect for, the unchosen sexual identity of gay and lesbian persons. Yet if the vote on Proposition 8 showed anything, it showed that most California voters still don’t actually hold heterosexual marriage and same-sex domestic partnerships in equal moral regard, and therefore haven’t really extended to gays and lesbians that final measure of recognition and respect.

Why, in the face of that regrettable fact, should gays and lesbians craving communal recognition of, and respect for, their sexual identities really care more about what any court says than the votes of the 6,838,107 Californians who favored Proposition 8 (or, on the brighter side, the 6,246,463 votes against it)? And won’t the judicial recognition of a constitutional right to same-sex marriage deprive the broader community of any future occasion to pay its respects to gays and lesbians the only way it can, through the democratic process? A judicial decision striking down Prop. 8 may be good, but a democratic decision to recognize same-sex marriage would be a lot better.

Seen in that light, Judge Walker’s decision looks to me like a mixed blessing.